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Enemies of the State: Rational Classification in the War on Terrorism

The seemingly parallel cases of John Walker Lindh (informally dubbed the American Taliban) and Yaser Esam Hamdi - both American citizens captured in Afghanistan while supposedly fighting for the Taliban - resulted in vastly different outcomes. Conventional criticism of the government has noted that Lindh was processed through the federal criminal system while Hamdi was detained as an enemy combatant without access to a lawyer, arguing that the disparate treatment cannot be explained rationally. In this contribution to the Crime, War Crimes, and the War on Terrorism Symposium at Lewis & Clark Law School, I argue that the different outcomes in fact make sense. The conventional criticism, which comes from sources ranging from Erwin Chemerinsky to Justice Scalia, focus too much on the formality of Hamdi's American citizenship while failing to acknowledge the reality of his Saudi citizenship. Hamdi's only crime as a foot soldier for the Taliban would be either treason or material support to a designated terrorist organization, but it would be absurd for the United States to demand fealty from a person who grew up elsewhere and never realized he was an American citizen until he was being interrogated at Guantanamo Bay. To argue that Hamdi nevertheless should be subject to criminal prosecution, rather than military detention, for being the equivalent of an enemy soldier would have unexpectedly severe and unreasonable consequences for many American citizens born to immigrant parents. This is true because most countries determine citizenship based on the citizenship of the person's parents. Thus, I was born in the United States to parents who were still citizens of a foreign country, and it is quite possible that I would be deemed a citizen by that country. If the United States went to war with that country and I fought in our armed forces, what would be my proper status if captured by the enemy nation? Under the view espoused by the critics of the government's treatment of Hamdi, I too would have to face criminal charges akin to treason in the foreign country - clearly an absurd outcome when I have grown up only in the United States. If that is true, however, then we have no right to demand that Hamdi not see us as his enemy, merely because of the happenstance of his having been born in the United States.